BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.280 of 2014

Date of Instt. 14.8.2014

Date of Decision :22.12.2014

J.S.Riar, aged about 52 years R/o House No.333, Defence Colony, Jalandhar.

..........Complainant

Versus

1. M/s Robin Traders, Garha Road, Jalandhar through its Prop.Manider Singh.

2. M/s Berger Paints India, Ltd, 129, Park Street, Kolkata-700017.

3. M/s Berger Paints India, Ltd, Vakiya Abadi, Village Khambra Tehsil & District Jalandhar.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.Ashok Kumar Adv., counsel for complainant.

Sh.Maninder Singh on behalf of opposite party No.1.

Sh.Umesh Dhingra Adv., counsel for OPs No.2 & 3.

Order

J.S. Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act against the opposite parties on the averments that complainant had purchased paints i.e PU sealer, glossy and thinner etc of the brand namely Berger Paints from opposite party No.1 at Jalandhar vide bills No.2265 dated 23.04.2014 amounting to Rs.8510/-. Complainant put the colours i.e PU paint which he had purchased on the surface of wood work of his house and after ten days defect appeared and the surface got lumps because of high atmospheric temperature condition and surface was badly damaged due to poor quality of PU paints supplied by opposite party No.1. At the time of supplying the PU paints to complainant by opposite party No.1, opposite party No.1 gave assurance to complainant that the goods are of a good brand and if any damage is caused due to the above said goods then the opposite parties will compensate the same to complainant, on believing the assurance given by opposite party No.1, complainant purchased the same. Complainant orally made the complaint regarding the PU paint to opposite parties and demanded the compensation from opposite parties to the tune of Rs.15,000/- in total. This compensation amount includes costs of paint, labour and damages. After receiving the complaint from complainant, opposite parties sent their representative/surveyor namely Davinder Kumar and he had seen the site and give assurance to complainant that his claim is genuine and company will pay the same to complainant but all these assurances were false one. Complainant got served legal notice dated 17.6.2014 to opposite parties but opposite parties did give reply to the same. On such like averments, the complainant has prayed for Rs.15,000/- as compensation. He has also claimed damages.

2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite party No.1 raised preliminary objections regarding maintainability, locus-standi and concealment of material facts. On merits it pleaded that matter is between opposite parties No.2 and 3 and the complainant.

3. In its separate written reply, opposite parties No.2 and 3 pleaded that in fact, the products of opposite parties No.2 and 3 are of the best quality in India which are sold in various parts of the country to several customers. No such complaint had ever been received from any of the customers. The real facts have been concealed by the complainant in the present complaint and a false complaint has been filed with the sinister intentions. Earlier one notice dated 12.5.2014 was received from opposite party No.1 M/s Robin Traders who had sold and supplied the material to the complainant. The said supplier had sold and supplied similar products to several customers but no such complaint has been received from any other consumer of the similar products. However, after receiving the notice the representative of the opposite parties No.2 and 3 visited the site and also contacted the applicator who had done the job work at the site of the complainant. The enquiry from the complainant as well as the applicator revealed that the material has not been used as per the recommendation and the guidelines for the user of the material. The material purchased as per the bill was PU sealer, glossy and thinner. This material has to be used for base preparation by using wood stainer but the complainant instead of using wood stainer had used spirit and "lakhdana". The complainant admittedly had not purchased wood stainer and he did not use wood stainer for the preparations of base. The spirit and "lakhdana" are not used for preparing the base but the complainant used the same. Moreover, the mixing ratio of the product was not followed as per recommendation on Polyurethane. Since the material was not used as per the recommendation and guidelines and the applicator of the complainant had used the material in a different manner as per his own choice and as such no fault can be attributed to the quality of the product. As already submitted above similar material have been used by several customers throughout the country and the said material is still being sold and also used by many consumers and no complaint from any corner has been received by the opposite parties No.2 and 3. The allegations of the complainant are totally false and baseless and the complaint deserves to be dismissed with special cost. They denied other material averments of the complaint.

4. In support of his complaint, learned counsel for complainant has tendered affidavit Ex.CA alongwith copies of documents Ex.C1 to C7 and closed evidence.

5. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.OP1/A and closed evidence. Further counsel for opposite parties No.2 and 3 tendered affidavit Ex.OP2/A alongwith copies of documents Ex.OP2/1 to Ex.OP2/2 and Ex.OP2/3 and closed evidence.

6. We have carefully gone through the record and also heard learned counsel for the parties and have further gone through the written arguments submitted on behalf of complainant.

7. It is not disputed that complainant has purchased the paint in question and thinner etc from opposite party No.1. Counsel for complainant contended that complainant applied the paint in question in winter season and with the change of season i.e summer, the surface of the wood got lumps because of high atmospheric temperature condition and surface was badly damaged due to poor quality of paints supplied by opposite party No.1. He further contended that complainant has placed on record the copy of instructions which clearly shows that no specific method has been mentioned by the opposite parties No.2 and 3 as to how to use the paint in question. He has further stated that representative of the opposite parties No.2 and 3 came on the spot and assured that he will be compensated. He further contended that complainant had engaged most experienced applicators and the opposite parties are wrongly taking wrong plea in order to wriggle out from liability. On the other hand, it has been contended by learned counsel for opposite parties No.2 and 3 that the paint was not applied as per instructions. He further contended that the complainant admittedly has not purchased wood stainer and did not use wood stainer for the preparations of base. He further contended that instead of using wood stainer had used spirit and "lakhdana" which are not used for preparing the base. He further contended that complainant had used the material without removing the previously applied paints upon the surface and it was essential to first remove the previously applied paints upon the surface and thereafter use the material in question as per instructions. He further contended that similar material was sold to several customers but no complaint has been received from any other customer. He further contended that defect if any is due to wrong application of the paint without removing previously applied paint from the wood surface. He further contended that the complainant has not produced any expert witness or report of laboratory to shows that there was any defect in the paint in question. We have carefully considered the contentions advanced by learned counsels for both the parties. From the evidence on record, it is not clear that the complainant has applied the paint as per guidelines and further after removing the previously applied paint from the wood surface. The complainant has placed on record the instructions for use of the paint Ex.C-7 and in the instructions it is specifically mentioned that "Sand the surface with emery paper grit 180 and then follow it up with 220 grit sand paper. Wipe is clean". So these directions clearly means that firstly the wooden surface on which the paint is to be applied is to be cleaned with the help of sand paper. Then in the instructions ratio in which the base and hardener are to be mixed is mentioned. In the complaint there are no specific averments that the instructions or guidelines for applying paint were observed or not. The complainant has not tendered the affidavit of the applicator or painter who used the paint in order to show that the instructions or guidelines for using the same were followed by him or not. On the other hand, opposite parties No.2 and 3 have tendered affidavit Ex.OP2/A of Sh.Kamlesh Kumar, Administrator, Berger Paints India Ltd, wherein he has stated that the further enquiry from the complainant as well as the applicator revealed that the material has not been used as per the recommendation and the guidelines for the user of the material. It is further in his affidavit that this material has to be used for base preparation by using wood stainer but the complainant instead of using wood stainer had used spirit and "lakhdana". It is further in his affidavit that the spirit and "lakhdana" are not used for preparing the base but the complainant used the same and further mixing ratio of the product was not followed. It is further in his affidavit that after receiving the notice the representative of the opposite parties No.2 and 3 visited the site and also contacted the applicator who had done work at the site of the complainant and it was found that the complainant had applied the material without removing the previously applied paints from the surface and it was essential to first remove the previously applied paints from the surface and thereafter the material has to be used but the complainant had not done so. The complainant has also not got analyzed the defective paint from any laboratory.

8. In Ajay Aggarwal Vs. Super Hardware Sales Corporation 1995(1) CLT 104, it has been held as under:-

"We are firmly of the view that even legal stand taken on behalf of the respondent is an impeccable one. It could not be disputed before us that the Nerolac Oil Bound Distemper was fully capable of chemical analysis and any inherent defect therein, could be precisely determined by the appropriate laboratory. Once that is so, the provisions of the sub section (c) of section 12 are automatically attracted to be situation. Here in the appellant's own case was that he had two buckets of the alleged defective distemper still in his possession. Nevertheless, he did not choose to resort to the mandatory procedure under section 13(c) to offer a sample therefrom and have it chemically analysed at an appropriate laboratory after paying the requisite charges, therefor. It is indeed well settled by now that where the alleged defective goods are thus capable of chemical analysis, the primal method of establishing a defect therein is by resort to a laboratory test. By not complying with the said provision, the appellant deserves to be non-suited on the said legal ground alone".

9. Further in Kamalinder Singh Vs. Hanuman Trader 2004(2) CLT 612, it has been held as under:-

"However, at the hearing of this appeal, the learned counsel for the appellant has assailed the findings of the District Forum and has shifted the onus on the District Forum for getting the samples of defective cement tested and analysed in an appropriate laboratory, as would be seen from the averments contained in sub paras(c) and (d) of the present appeal. We do not find any force in the submission of the learned counsel. No case has been made out in the complaint of the appellant so as to prove the defectiveness of the cement bags in question, merely bald assertions of defectiveness would not do as already stated above. Under clause(c) the section 13(1) of the Act, it was incumbent on the complainant to produce a sample of the alleged defective cement before the District Forum so that the same could be sent to the appropriate laboratory after observing the codal formality referred to in the said clause, so as to carry out analysis or test there".

10. The ratio of the above cited authorities is applicable on the facts of the present case. The complainant did not get the paint analyzed from any laboratory to prove that there was any defect in the paint. The complainant could have purchased the similar paint of same batch from the market and get the same analyzed from any laboratory or produced the same before this forum for sending sample of the paint to the laboratory for analysis to ascertain that if there was any defect in the paint in question or not. The complainant has not done so. He has also not tendered the affidavit of the painter who had applied the paint to show that the paint was applied as per instructions and guidelines of the company. So in the above circumstances, we have no hesitation to hold hat complainant has failed to prove his case.

11. In view of above discussion, we hold that there was no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

22.12.2014 Member President